What did we learn from yesterday’s oral arguments in the historic same-sex marriage cases? The basic take-away seems to be that the issue looks a lot harder inside the Supreme Court than it does outside. The run of success for the cause of same-sex marriage—in state legislatures and referenda, in state courts and the lower federal courts, and in opinion polls—has given a sense of inevitability to the issue. And it has seemed reasonable to assume that the Supreme Court would surely join this powerful trend, issuing a landmark ruling that will only become more celebrated over time.
Nothing that occurred yesterday necessarily upsets this assumption. It is still more likely than not that in late June we will have a Court ruling striking down bans on same-sex marriage nationwide. But what we did not get was the kind of marriage-equality victory parade we have seen playing out in the mainstream press and in many of the lower federal courts. To read the commentary surrounding the Supreme Court’s decision to let stand federal appeals court decisions striking down same-sex marriage bans or Judge Posner’s scathing dismissal of the case against same-sex marriage, one feels that the arguments on one side of the debate are simply dissolving before our eyes.
The situation looked quite different inside the Supreme Court yesterday. From the perspective of the conservative justices on the Court, perfectly good reasons remain for the Court to stay its hand and allow the issue to continue to play out at the state level. The issue “is not whether there should be samesex marriage,” emphasized Justice Scalia, “but who should decide the point.” To this question of “who decides?” Mary Bonauto, the lawyer for the challengers to the same-sex marriage ban, concluded her argument with the following response: “It’s not about the Court versus the States. It’s about the individual making the choice to marry and with whom to marry, or the government.”
I sense that one of the dynamics playing out in the Court yesterday was that even if Justice Kennedy knows that he is going to side with the challengers, he wants to emphasize the difficulty of the issue. This may help to protect the perceived legitimacy of the Court when the eventual ruling comes from a divided Court, probably in a 5-4 break. It also draws attention to Justice Kennedy himself. It personalizes the issue. The story is less about the inevitability of the issue due to the political, legal, and cultural transformation taking place and more about the struggle of a justice—a story Kennedy has drawn attention to in the past.